A new lawsuit combining COVID-19 claims with wage and hour allegations is raising questions about how much litigation will ensue absent state lawmakers passing liability protections for businesses and without clarification of Thursday's revisions to the Cal/OSHA Emergency Temporary Standards (ETS).
In addition to inaccurate wages and meal break claims, Gonzalez v. Fisher Printing alleges employees were told to wear masks on the job but were not reimbursed for the expense.
“The message is this is going to get worse; employers have to document everything they can think of,” Tom Manzo, founder and president of the California Business and Industrial Alliance, told the Northern California Record. “Having to have employees sign a document that they were provided with masks is another burden for employers.”
But such measures could stave off what are often described as shakedown lawsuits, in which a business elects to settle legal action instead of paying the steep costs to defend difficult to refute claims unless employees are videoed on the job. Manzo said such lawsuits are expected to increase in view of the more restrictive ETS just passed by Cal/OSHA.
A coalition letter to Cal/OSHA, from the California Chamber of Commerce and dozens of business groups, points out the difficulty of implementing rules that differ from state and CDC guidance.
“It means more lawsuits in the state, more lawsuits over Covid," Manzo said. “It’s adding tons of fuel to the fire, making it 100 times worse.”
The ETS rules regarding vaccination status are unclear, Manzo said, adding that it appears if one person is not vaccinated then co-workers who are must wear masks. But without clarity on how to determine who is vaccinated, it could expose businesses to excessive litigation.
“So, the challenge becomes, am I allowed to ask is everybody vaccinated, and what if someone doesn’t want to, and then an attorney says my client is discriminated against because he or she feels because of them not being vaccinated, it’s a hostile work environment,” Manzo said.
“It’s honestly a nightmare,” Manzo said. “These things will end up being typical shakedown lawsuits – difficult to defend, easier to settle than defend. And by adding Covid claims, it adds to the dollar amount; for the trial attorney, it’s adding gravy to the mashed potatoes.”
High costs are a driving factor in businesses having to close or choosing to relocate.
“People that want to expand their business and many bigger companies – they’re choosing to expand in other states,” Manzo said. “Because in California it’s too easy to sue an employer – it’s such an anti-business climate, and all that’s going to do in the end is hurt the employees because it’s going to be less work for them to find.”